exv4w15





Exhibit
4.15

 





INTEROIL CORPORATION,




as Issuer




and




THE
BANK OF NEW YORK MELLON TRUST

COMPANY, N.A.,

as Trustee

 






INDENTURE

 






Dated as
of August 6, 2008





 




 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 
	 	 	 	 
	ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	1	 
	Section 1.1 Definitions
	 	 	1	 
	Section 1.2 Compliance Certificates and Opinions
	 	 	7	 
	Section 1.3 Form of Documents Delivered to Trustee
	 	 	8	 
	Section 1.4 Acts of Holders; Record Dates
	 	 	9	 
	Section 1.5 Notices, Etc., to Trustee and Company
	 	 	11	 
	Section 1.6 Notice to Holders; Waiver
	 	 	11	 
	Section 1.7 Conflict with Trust Indenture Act
	 	 	11	 
	Section 1.8 Effect of Headings and Table of Contents
	 	 	11	 
	Section 1.9 Successors and Assigns
	 	 	12	 
	Section 1.10 Separability Clause
	 	 	12	 
	Section 1.11 Benefits of Indenture
	 	 	12	 
	Section 1.12 Governing Law and Submission to Jurisdiction
	 	 	12	 
	Section 1.13 Legal Holidays
	 	 	13	 
	Section 1.14 Incorporators, Stockholders, Officers and Directors
of Company Exempt from Individual Liability
	 	 	13	 
	Section 1.15 Conversion of Currency
	 	 	13	 
	Section 1.16 Currency Equivalent
	 	 	15	 
	ARTICLE II. SECURITY FORMS
	 	 	15	 
	Section 2.1 Forms Generally
	 	 	15	 
	Section 2.2 Form of Trustee’s Certificate of Authentication
	 	 	16	 
	Section 2.3 Securities Issuable in Global Form
	 	 	16	 
	ARTICLE III. THE SECURITIES
	 	 	17	 
	Section 3.1 Amount Unlimited; Issuable in Series
	 	 	17	 
	Section 3.2 Denominations
	 	 	20	 
	Section 3.3 Execution, Authentication, Delivery and Dating
	 	 	20	 
	Section 3.4 Temporary Securities
	 	 	21	 
	Section 3.5 Registration, Registration of Transfer and Exchange
	 	 	22	 
	Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities
	 	 	24	 
	Section 3.7 Payment of Interest; Interest Rights Preserved
	 	 	25	 
	Section 3.8 Persons Deemed Owners
	 	 	26	 
	Section 3.9 Cancellation
	 	 	26	 
	Section 3.10 Computation of Interest
	 	 	26	 
	Section 3.11 CUSIP Numbers
	 	 	26	 
	ARTICLE IV. SATISFACTION AND DISCHARGE
	 	 	27	 
	Section 4.1 Satisfaction and Discharge of Indenture
	 	 	27	 
	Section 4.2 Application of Trust Money
	 	 	28	 
	ARTICLE V. REMEDIES
	 	 	28	 
	Section 5.1 Events of Default
	 	 	28	 
	Section 5.2 Acceleration of Maturity; Rescission and Annulment
	 	 	30	 
	Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	31	 
	Section 5.4 Trustee May File Proofs of Claim
	 	 	31	 
	Section 5.5 Trustee May Enforce Claims Without Possession of Securities
	 	 	32	 






i









 






	 	 	 	 	 
	Section 5.6 Application of Money Collected
	 	 	32	 
	Section 5.7 Limitation on Suits
	 	 	32	 
	Section 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Convert Certain Securities
	 	 	33	 
	Section 5.9 Restoration of Rights and Remedies
	 	 	33	 
	Section 5.10 Rights and Remedies Cumulative
	 	 	33	 
	Section 5.11 Delay or Omission Not Waiver
	 	 	34	 
	Section 5.12 Control by Holders
	 	 	34	 
	Section 5.13 Waiver of Past Defaults
	 	 	34	 
	Section 5.14 Undertaking for Costs
	 	 	35	 
	Section 5.15 Waiver of Usury, Stay or Extension Laws
	 	 	35	 
	ARTICLE VI. THE TRUSTEE
	 	 	35	 
	Section 6.1 Certain Duties and Responsibilities
	 	 	35	 
	Section 6.2 Notice of Defaults
	 	 	35	 
	Section 6.3 Certain Rights of Trustee
	 	 	36	 
	Section 6.4 Not Responsible for Recitals or Issuance of Securities
	 	 	36	 
	Section 6.5 May Hold Securities
	 	 	37	 
	Section 6.6 Money Held in Trust
	 	 	37	 
	Section 6.7 Compensation and Reimbursement
	 	 	37	 
	Section 6.8 Conflicting Interests
	 	 	37	 
	Section 6.9 Corporate Trustee Required; Eligibility
	 	 	37	 
	Section 6.10 Resignation and Removal; Appointment of Successor
	 	 	38	 
	Section 6.11 Acceptance of Appointment by Successor
	 	 	39	 
	Section 6.12 Merger, Conversion, Consolidation or Succession to Business
	 	 	40	 
	Section 6.13 Preferential Collection of Claims Against Company
	 	 	40	 
	Section 6.14 Appointment of Authenticating Agent
	 	 	41	 
	Section 6.15 Force Majeure
	 	 	42	 
	Section 6.16 Other Capacities
	 	 	42	 
	ARTICLE VII. HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
	 	 	42	 
	Section 7.1 Company to Furnish Trustee Names and Addresses of Holders
	 	 	42	 
	Section 7.2 Preservation of Information; Communications to Holders
	 	 	42	 
	Section 7.3 Reports by Trustee
	 	 	43	 
	Section 7.4 Reports by Company
	 	 	43	 
	ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
	 	 	43	 
	Section 8.1 Company May Consolidate, Etc., Only on Certain Terms
	 	 	43	 
	Section 8.2 Successor Substituted
	 	 	44	 
	ARTICLE IX. SUPPLEMENTAL INDENTURES
	 	 	45	 
	Section 9.1 Supplemental Indentures without Consent of Holders
	 	 	45	 
	Section 9.2 Supplemental Indentures with Consent of Holders
	 	 	46	 
	Section 9.3 Execution of Supplemental Indentures
	 	 	47	 
	Section 9.4 Effect of Supplemental Indentures
	 	 	47	 
	Section 9.5 Conformity with Trust Indenture Act
	 	 	48	 
	Section 9.6 Reference in Securities to Supplemental Indentures
	 	 	48	 
	Section 9.7 Notice of Supplemental Indentures
	 	 	48	 
	ARTICLE X. COVENANTS
	 	 	48	 
	Section 10.1 Payment of Principal, Premium and Interest
	 	 	48	 






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	Section 10.2 Maintenance of Office or Agency
	 	 	48	 
	Section 10.3 Money for Securities Payments to Be Held in Trust
	 	 	49	 
	Section 10.4 Statement by Officers as to Default
	 	 	50	 
	Section 10.5 Existence
	 	 	50	 
	Section 10.6 Maintenance of Properties
	 	 	50	 
	Section 10.7 Payment of Taxes and Other Claims
	 	 	50	 
	Section 10.8 Waiver of Certain Covenants
	 	 	50	 
	ARTICLE XI. REDEMPTION OF SECURITIES
	 	 	51	 
	Section 11.1 Applicability of Article
	 	 	51	 
	Section 11.2 Election to Redeem; Notice to Trustee
	 	 	51	 
	Section 11.3 Selection by Trustee of Securities to Be Redeemed
	 	 	51	 
	Section 11.4 Notice of Redemption
	 	 	52	 
	Section 11.5 Deposit of Redemption Price
	 	 	52	 
	Section 11.6 Securities Payable on Redemption Date
	 	 	53	 
	Section 11.7 Securities Redeemed in Part
	 	 	53	 
	ARTICLE XII. SINKING FUNDS
	 	 	53	 
	Section 12.1 Applicability of Article
	 	 	53	 
	Section 12.2 Satisfaction of Sinking Fund Payments with Securities
	 	 	53	 
	Section 12.3 Redemption of Securities for Sinking Fund
	 	 	54	 
	ARTICLE XIII. DEFEASANCE AND COVENANT DEFEASANCE
	 	 	54	 
	Section 13.1 Company’s Option to Effect Defeasance or Covenant Defeasance
	 	 	54	 
	Section 13.2 Defeasance and Discharge
	 	 	54	 
	Section 13.3 Covenant Defeasance
	 	 	55	 
	Section 13.4 Conditions to Defeasance or Covenant Defeasance
	 	 	55	 
	Section 13.5 Deposited Money and U.S. Government Obligations to
Be Held in Trust; Miscellaneous Provisions
	 	 	58	 
	Section 13.6 Reinstatement
	 	 	58	 
	ARTICLE XIV. WAIVER OF JURY TRIAL
	 	 	59	 






iii









 





Certain Sections of this Indenture relating to Sections 310 through 318, inclusive, of the Trust
Indenture Act of 1939:




	 	 	 
	Trust	 	 
	Indenture	 	 
	Act Section	Indenture Section
	 
	 	 
	§ 310(a)(1)
	 	609
	(a)(2)
	 	609
	(a)(3)
	 	Not Applicable
	(a)(4)
	 	Not Applicable
	(b)
	 	608, 610
	§ 311(a)
	 	613
	(b)
	 	613
	§ 312(a)
	 	701
	 
	 	702
	(b)
	 	702
	(c)
	 	702
	§ 313(a)
	 	703
	(b)
	 	703
	(c)
	 	703
	(d)
	 	703
	§ 314(a)
	 	704
	(a)(4)
	 	101
	 
	 	1004
	(b)
	 	Not Applicable
	(c)(1)
	 	102
	(c)(2)
	 	102
	(c)(3)
	 	Not Applicable
	(d)
	 	Not Applicable
	(e)
	 	102
	§ 315(a)
	 	601
	(b)
	 	602
	(c)
	 	601
	(d)
	 	601
	(e)
	 	514
	§ 316(a)
	 	101
	(a)(1)(A)
	 	502
	 
	 	512
	(a)(1)(B)
	 	513
	(a)(2)
	 	Not Applicable
	(b)
	 	508
	(c)
	 	104
	§ 317(a)(1)
	 	503






iv









 






	 	 	 
	Trust	 	 
	Indenture	 	 
	Act Section	Indenture Section
	 
	(a)(2)
	 	504
	(b)
	 	1003
	§ 318(a)
	 	107





Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.





v









 








     INDENTURE, dated as of [     ], between InterOil Corporation, a corporation duly incorporated
under the laws of the Province of New Brunswick (herein called the “Company”), having its principal
office at Level 1, 60-92 Cook Street, Cairns, QLD 4870, Australia,
and The Bank of New York Mellon Trust
Company, N.A., a national banking association, as Trustee (herein called the “Trustee”).



RECITALS OF THE COMPANY




     The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the “Securities”), which may be convertible into or exchangeable for
any securities or property of and Person (including the Company), to be issued in one or more
series as provided in this Indenture.



     All things necessary to make this Indenture a valid agreement of the Company, in accordance
with its terms, have been done.



Now, therefore, this Indenture witnesseth:




     For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of each series thereof, as follows:



ARTICLE I.

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION




     Section 1.1 Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:




     (a) the terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular;




     (b) all other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;




     (c) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with Generally Accepted Accounting Principles;




     (d) unless the context otherwise requires, any reference to an “Article” or a
“Section” refers to an Article or a Section, as the case may be, of this Indenture;




     (e) “or” is not exclusive and words implying any gender shall apply to all genders;



1









 






     (f) the words “herein”, “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision; and




     (g) all references to dollars, Dollars and $ shall mean U.S. dollars unless otherwise
indicated.



     “Act”, when used with respect to any Holder, has the meaning specified in Section 1.4.



     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.



     “Authenticating Agent” means any Person authorized by the Trustee pursuant to Section
6.14 to act on behalf of the Trustee to authenticate Securities of one or more series.



     “Board of Directors” means either the board of directors of the Company or any duly authorized
committee of that board.



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the Trustee.



     “Business Day”, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in the City of New York and in the applicable Place of Payment, if
other than the City of New York, are authorized or obligated by law or executive order to close.



     “Commission” means the Securities and Exchange Commission, from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.



     “Company” means the Person named as the “Company” in the first paragraph of this Indenture
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Company” shall mean such successor Person.



     “Company Request” or “Company Order” means a written request or order delivered to the Trustee
and signed in the name of the Company by any two of its officers



2









 




having the title of President & Chief Executive Officer, Vice President (including any
Executive, Group or other Vice President) or Corporate Secretary.




     “Corporate
Trust Office” means the office of the Trustee in
Houston, Texas at
which at any particular time its corporate trust business shall be administered, which, as of the
date hereof, is 601 Travis, 18th Floor, Houston, Texas 77002,
Attention: Corporate Trust Officer.



     “corporation” includes a corporation, association, company, limited liability company,
joint-stock company or business trust.



     “Covenant Defeasance” has the meaning specified in Section 13.3.



     “Defaulted Interest” has the meaning specified in Section 3.7.



     “Defeasance” has the meaning specified in Section 13.2.



     “Depositary” means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under the Exchange Act that
is designated to act as Depositary for such Securities as contemplated by Section 3.1.



     “Event of Default” has the meaning specified in Section 5.1.



     “Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in
each case as amended from time to time.



     “Expiration Date” has the meaning specified in Section 1.4.



     “Generally Accepted Accounting Principles” means generally accepted accounting principles
which are in effect from time to time in Canada.



     “Global Security” means a Security that evidences all or part of the Securities of any series
as contemplated by Section 2.3.



     “Holder” means a Person in whose name a Security is registered in the Security Register.



     “Indenture” means this instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively. The term “Indenture”
shall also include the terms of particular series of Securities established as contemplated by
Section 3.1.



3









 





     “interest”, when used with respect to an Original Issue Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity at the rate prescribed in
such Original Issue Discount Security.



     “Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of
an installment of interest on such Security.



     “Investment Company Act” means the Investment Company Act of 1940 and any statute successor
thereto, in each case as amended from time to time.



     “Maturity”, when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.



     “Notice of Default” means a written notice of the kind specified in Section 5.1(c).



     “Officers’ Certificate” means a certificate delivered to the Trustee and signed by any two of
the officers of the Company having the title of Chief Executive
Officer, President, Vice President
(including any Executive, Group or other Vice President) or Corporate Secretary. One of the
officers signing an Officers’ Certificate given pursuant to Section 10.4 shall be the
principal executive, financial or accounting officer of the Company.



     “Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company,
and who shall be acceptable to the Trustee.



     “Original Issue Discount Security” means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2.



     “Outstanding”, when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:




     (a) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;




     (b) Securities, or portions thereof, for whose payment or redemption or repayment at
the option of the Holder, money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;



4









 






     (c) Securities as to which Defeasance has been effected pursuant to Section
13.2;




     (d) Securities which have been paid pursuant to Section 3.6 or in exchange for
or in lieu of which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held by a
protected purchaser (as defined in Article 8 of the UCC) in whose hands such Securities are
valid obligations of the Company; and




     (e) Securities into which any property deliverable upon conversion thereof has been
delivered (or such delivery has been duly provided for), or as to which any other
particular conditions have been satisfied, in each case as may be provided for Securities
subject to conversion as contemplated by Section 3.1(t);


provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given, made or taken any request, demand, authorization, direction,
notice, consent, waiver or other action hereunder as of any date, (i) the principal amount of an
Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the
principal thereof which would be due and payable as of such date upon acceleration of the Maturity
thereof to such date pursuant to Section 5.2, (ii) if, as of such date, the principal
amount payable at the Stated Maturity of a Security is not determinable, the principal amount of
such Security which shall be deemed to be Outstanding shall be the amount as specified or
determined as contemplated by Section 3.1, (iii) the principal amount of a Security
denominated in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided
as contemplated by Section 3.1, of the principal amount of such Security (or, in the case
of a Security described in Clause (i) or (ii) above, of the amount determined as provided in such
Clause), and (iv) Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other action, only
Securities which the Trustee has actual knowledge to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.




     “Paying Agent” means any Person authorized by the Company to pay the principal of or any
premium or interest on any Securities on behalf of the Company.



     “Person” means any individual, corporation, limited liability company, partnership, joint
venture, trust, unincorporated organization or government or any agency or political subdivision
thereof.



5









 





     “Place of Payment”, when used with respect to the Securities of any series, means the place or
places where the principal of and any premium and interest on the Securities of that series are
payable as specified as contemplated by Section 3.1.



     “Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 3.6 in exchange
for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.



     “Redemption Date”, when used with respect to any Security to be redeemed, in whole or in part,
means the date fixed for such redemption by or pursuant to this Indenture.



     “Redemption Price”, when used with respect to any Security to be redeemed, in whole or in
part, means the price at which it is to be redeemed pursuant to this Indenture, plus accrued and
unpaid interest thereon to the Redemption Date.



     “Regular Record Date” for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified for that purpose as contemplated by Section 3.1.



     “Responsible Officer”, when used with respect to the Trustee, means the chairman or any vice
chairman of the board of directors, the chairman or any vice chairman of the executive committee of
the board of directors, the chairman of the trust committee, the
president, any vice president, any assistant vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred because of his knowledge
of and familiarity with the particular subject.



     “Securities” has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.



     “Securities Act” means the Securities Act of 1933 and any statute successor thereto, in each
case as amended from time to time.



     “Security Interest” means any security by way of assignment, mortgage, charge, pledge, lien,
encumbrance, title retention agreement or other security interest whatsoever, howsoever created or
arising, whether absolute or contingent, fixed or floating, perfected or not.



     “Security Register” and “Security Registrar” have the respective meanings specified in
Section 3.5.



6









 





     “Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.7.



     “Stated Maturity”, when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable.



     “Subsidiary” means any corporation of which shares carrying more than 50% of the voting rights
attaching to all outstanding shares carrying voting rights at all times (provided that ownership of
such shares confers the right to elect at least a majority of the directors of such corporation)
are beneficially owned, directly or indirectly, by the Company or by the Company and any other
Subsidiary or by any other Subsidiary.



     “Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.



     “Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person,



     “Trustee” as used with respect to the Securities of any series shall mean the Trustee with
respect to Securities of that series.



     “UCC” means the New York Uniform Commercial Code in effect from time to time.



     “U.S. Government Obligation” has the meaning specified in Section 13.4.



     “Vice President”, when used with respect to the Company or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
“vice president”.



     Section 1.2 Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall
be given in the form of an Officers’ Certificate, if to be given by an officer of the Company, or
an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the
Trust Indenture Act and any other requirements set forth in this Indenture.



     Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (except for certificates provided for in Section 10.4) shall include,



7









 






     (a) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;




     (b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




     (c) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been complied with; and




     (d) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.



     Section 1.3 Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.



     Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to such matters are erroneous.



     Any certificate or opinion of an officer of the Company or of counsel may be based, insofar as
it relates to accounting matters, upon a certificate or opinion of, or representations by, an
accountant or firm of accountants in the employ of the Company, unless such officer or counsel, as
the case may be, knows, or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the accounting matters upon which such certificate or
opinion may be based are erroneous. Any certificate or opinion of any independent firm of public
accountants filed with the Trustees shall contain a statement that such firm is independent.



     Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.



8









 





     Section 1.4 Acts of Holders; Record Dates. Any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of
the Holders signing such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and
(subject to Section 6.1) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.



     The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.



     The
ownership of Securities shall be proved exclusively by the Security
Register, not withstanding any notice that the Trustee or the Company
may receive to the contrary.



     Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security.



     The Company may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not
such Holders remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the
requisite principal amount of Outstanding Securities of such series on such record date. Nothing
in this paragraph shall be construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to



9









 




this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person be cancelled and of
no effect), and nothing in this paragraph shall be construed to render ineffective any action taken
by Holders of the requisite principal amount of Outstanding Securities of the relevant series on
the date such action is taken. Promptly after any record date is set pursuant to this paragraph,
the Company, at its own expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder
of Securities of the relevant series in the manner set forth in Section 1.6.




     The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 5.2, (iii) any request
to institute proceedings referred to in Section 5.7(b) or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. If any record date
is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such
record date, and no other Holders, shall be entitled to join in such notice, declaration, request
or direction, whether or not such Holders remain Holders after such record date; provided that no
such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a
new record date for any action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with no action by any
Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities
of the relevant series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date to be given to the
Company in writing and to each Holder of Securities of the relevant series in the manner set forth
in Section 1.6.



     With respect to any record date set pursuant to this Section, the party hereto which sets such
record dates may designate any day as the “Expiration Date” and from time to time may change the
Expiration Date to any earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in writing, and to
each Holder of Securities of the relevant series in the manner set forth in Section 1.6, on
or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to
any record date set pursuant to this Section, the party hereto which set such record date shall be
deemed to have initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as provided in this
paragraph.



     Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with
regard to any particular Security may do so with regard to all or any part of the principal amount
of such Security or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.



10









 





     Section 1.5 Notices, Etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,




     (a) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or




     (b) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.



     Section 1.6 Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at the Holder’s address as it
appears in the Security Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver. Any notice mailed to a Holder in the manner herein prescribed shall
be conclusively deemed to have been received by such Holder, whether or not such Holder actually
receives such notice.



     In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.



     Section 1.7 Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act which is required under such Act to be a part of and govern this
Indenture, the provision of the Trust Indenture Act shall control. If any provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed
to apply to this Indenture as so modified or to be excluded, as the case may be.



     Section 1.8 Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.



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     Section 1.9 Successors and Assigns. All covenants and agreements in this Indenture by the Company and the Trustee shall bind their
successors and assigns, whether so expressed or not.



     Section 1.10 Separability Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.



     Section 1.11 Benefits of Indenture. Nothing in this Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto, any Authenticating Agent, Paying Agent, Security Registrar, and
their successors hereunder (and, if pursuant to Section 3.1 the Securities of any series
are subordinated to any obligations of the Company, the holders of such senior obligations) and the
Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.



     Section 1.12 Governing Law and Submission to Jurisdiction.



     (a) This Indenture and the Securities shall be governed by and construed in accordance with
the law of the State of New York.



     (b) The Company irrevocably submits to the non-exclusive jurisdiction of any New York State or
Federal court sitting in The City of New York over any suit, action or proceeding arising out of or
relating to this Indenture or any Security. The Company waives, to the fullest extent permitted by
law, any objection which it may have to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit, action or proceeding brought
in such court has been brought in any inconvenient forum. The Company agrees that final judgment
in any such suit, action or proceeding brought in such a court shall be conclusive and binding upon
the Company and may be enforced in the courts of Canada (or any other courts to the jurisdiction of
which the Company is subject) by a suit upon such judgment, provided that service of process is
effected upon the Company in the manner specified in the
following paragraph or as otherwise permitted by law; provided, however, that the Company does
not waive, and the foregoing provisions of this sentence shall not constitute or be deemed to
constitute a waiver of, (i) any right to appeal any such judgment, to seek any stay or otherwise to
seek reconsideration or review of any such judgment or (ii) any stay of execution or levy pending
an appeal from, or a suit, action or proceeding for reconsideration or review of, any such
judgment.



     As long as any of the Securities remain outstanding, the Company will at all times have an
authorized agent in the Borough of Manhattan, The City of New York upon whom process may be served
in any legal action or proceeding arising out of or relating to the Indenture or any Security.
Service of process upon such agent and written notice of such service mailed or delivered to the
Company shall to the extent permitted by law be deemed in every respect effective service of
process upon the Company in any such legal action or proceeding. The Company covenants to appoint
CT Corporation System as its agent for such purpose, and covenants and agrees that service of
process in any



12









 




such legal action or proceeding may be made upon it at the office of such agent at
111 Eighth Avenue, 13th Floor, New York, New York 10011 (or at such other address in the Borough of
Manhattan, The City of New York, as the Company may designate by written notice to the Trustee).




     The Company hereby consents to process being served in any suit, action or proceeding of the
nature referred to in the preceding paragraphs by service upon such agent together with the mailing
of a copy thereof by registered or certified mail, postage prepaid, return receipt requested, to
the address of the Company as in effect from time to time pursuant to Section 1.5(b). The
Company irrevocably waives, to the fullest extent permitted by law, all claim of error by reason of
any such service (but does not waive any right to assert lack of subject matter jurisdiction) and
agrees that such service (i) shall be deemed in every respect effective service of process upon the
Company in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by
law, be taken and held to be a valid personal service upon and personal delivery to the Company.



     Nothing in this paragraph (b) shall affect the right of the Trustee or any Holder to serve
process in any manner permitted by law or limit the right of the Trustee to bring proceedings
against the Company in the courts of any jurisdiction or jurisdictions.



     Section 1.13 Legal Holidays. In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities (other than a provision of any Security which
specifically states that such provision shall apply in lieu of this Section)) payment of interest
or principal (and premium, if any) need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity.



     Section 1.14 Incorporators, Stockholders, Officers and Directors of Company Exempt from
Individual Liability. No recourse under or upon any obligation, covenant or agreement contained in this Indenture,
or in any Security, or because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such or against any past, present or future stockholder, officer or director, as
such, of the Company or of any successor, either directly or through the Company or any successor,
under any rule of law, statute or constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and
released by the acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.



     Section 1.15 Conversion of Currency.



     (a) The Company covenants and agrees that the following provisions shall apply to conversion
of currency in the case of the Securities and this Indenture.



13









 






     (i) If for the purposes of obtaining judgment in, or enforcing the judgment of, any
court in any country, it becomes necessary to convert into any other currency (the
“Judgment Currency”) an amount due or contingently due under the Securities of any series
and this Indenture (the “Required Currency”), then the conversion shall be made at the rate
of exchange prevailing on the Business Day before the day on which a final judgment which
is not appealable or is not appealed is given or the order of enforcement is made, as the
case may be (unless a court shall otherwise determine).




     (ii) If there is a change in the rate of exchange prevailing between the Business Day
before the day on which the judgment referred to in (1) above is given or an order of
enforcement is made, as the case may be (or such other date as a court shall determine),
and the date of receipt of the amount due, the Company shall pay such additional (or, as
the case may be, such lesser) amount, if any, as may be necessary so that the amount paid
in the Judgment Currency when converted at the rate of exchange prevailing on the date of
receipt will produce the amount in the Required Currency originally due.



     (b) In the event of the winding-up of the Company at any time while any amount or damages
owing under the Securities and this Indenture, or any judgment or order rendered in respect
thereof, shall remain outstanding, the Company shall indemnify and hold the Holders of Securities
and the Trustee harmless against any deficiency arising or resulting from any variation in rates of
exchange between (1) the date as of which the equivalent of the amount in the Required Currency
(other than under this Subsection (b)) is calculated for the purposes of such winding-up and (2)
the final date for the filing of proofs of claim in such winding-up. For the purpose of this
Subsection (b) the final date for the filing of proofs of claim in the winding-up of the Company
shall be the date fixed by the liquidator or otherwise in accordance with the relevant provisions
of applicable law as being the latest practicable date as at which liabilities of the
Company may be ascertained for such winding-up prior to payment by the liquidator or otherwise
in respect thereto.



     (c) The obligations contained in Subsections (a)(2) and (b) of this Section shall constitute
separate and independent obligations of the Company from its other obligations under the Securities
and this Indenture, shall give rise to separate and independent causes of action against the
Company, shall apply irrespective of any waiver or extension granted by any Holder or Trustee from
time to time and shall continue in full force and effect notwithstanding any judgment or order or
the filing of any proof of claim in the winding-up of the Company for a liquidated sum in respect
of amounts due hereunder (other than under Subsection (b) above) or under any such judgment or
order. Any such deficiency as aforesaid shall be deemed to constitute a loss suffered by the
Holders or the Trustee, as the case may be, and no proof or evidence of any actual loss shall be
required by the Company or the applicable liquidator. In the case of Subsection (b) above, the
amount of such deficiency shall not be deemed to be reduced by any variation in rates of exchange
occurring between the said final date and the date of any liquidated distribution.



14









 





     (d) The term “rate(s) of exchange” shall mean the Bank of Canada noon rate for purchases on
the relevant date of the Required Currency with the Judgment Currency, as reported on the “Exchange
Rates-Daily noon rates” page of the website of Bank of Canada (or by such other means of reporting
the Bank of Canada noon rate as may be agreed upon by each of the parties in this Indenture) and
includes any premiums and costs of exchange payable.



     Section 1.16 Currency Equivalent. Except as otherwise provided in this Indenture, for purposes of the construction of the terms
of this Indenture or of the Securities, in the event that any amount is stated herein in the
Currency of one nation (the “First Currency”), as of any date such amount shall also be deemed to
represent the amount in the Currency of any other relevant nation (the “Other Currency”) which is
required to purchase such amount in the First Currency at the Bank of Canada noon rate as reported
on the “Exchange Rates-Daily noon rates” page on the website of Bank of Canada (or by such other
means of reporting the Bank of Canada noon rate as may be agreed upon by each of the parties to
this Indenture) on the date of determination.



ARTICLE II.

SECURITY FORMS




     Section 2.1 Forms Generally. The Securities of each series shall be in substantially the form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks of identification
and such legends or
endorsements placed thereon as may be required to comply with the rules of any securities
exchange or Depositary therefor or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution thereof. If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by
Section 3.3 for the authentication and delivery of such Securities. Any portion of the
text of any Security may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Security.



     The Trustee’s certificate of authentication on all Securities shall be in substantially the
form set forth in this Article.



     The definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.





15











 




     Section 2.2 Form of Trustee’s Certificate of Authentication. The Trustee’s certificates of authentication shall be in substantially the following form:




     This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.









	 	 	 	 	 
	Dated: .                                                             	Bank of New York Mellon Trust Company, N.A., As Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 








     Section 2.3 Securities Issuable in Global Form If Securities of or within a series are
issuable in global form, as specified and contemplated by Section 3.1, then,
notwithstanding clause (i) of Section 3.1, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities of such series from time to time endorsed
thereon and that the aggregate amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 3.3 or Section 3.4. Subject to
the provisions of Section 3.3 and, if applicable, Section 3.4, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and
upon instructions given by the Person or Persons specified therein or in the applicable Company
Order. If a Company Order pursuant to Section 3.3 or Section 3.4 has been, or
simultaneously is, delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need not comply with
Section 1.2 and need not be accompanied by an Opinion of Counsel.



     The provisions of the last sentence of Section 3.3 shall apply to any Security
represented by a Security in global form if such Security was never issued and sold by the Company
and the Company delivers to the Trustee the Security in global form together with written
instructions (which need not comply with Section 1.2 and need not be accompanied by an
Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence of Section
3.3.



     Notwithstanding the provisions of Section 3.7, unless otherwise specified as
contemplated by Section 3.1, payment of principal of (and premium, if any) and interest, if
any, on any Security in permanent global form shall be made to the Person or Persons specified
therein.



16









 





ARTICLE III.

THE SECURITIES




     Section 3.1 Amount Unlimited; Issuable in Series. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is unlimited. All
Securities of any one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of additional Securities
of such series.



     The Securities may be issued in one or more series. There shall be established in one or more
Board Resolutions or pursuant to authority granted by one or more Board Resolutions and, subject to
Section 3.3, set forth, or determined in the manner provided, in an Officers’ Certificate,
or established in one or more indentures supplemental hereto, prior to the issuance of Securities
of any series, any or all of the following, as applicable (each of which (except for the matters
set forth in clauses (a), (b) and (q) below), if so provided, may be determined from time to time
by the Company with respect to unissued Securities of the series and set forth in such Securities
of the series when issued from time to time):




     (a) the title of the Securities of the series (which shall distinguish the Securities
of the series from Securities of any other series);




     (b) any limit upon the aggregate principal amount of the Securities of the series
which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Sections 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any Securities which, pursuant to
Section 3.3, are deemed never to have been authenticated and delivered hereunder);




     (c) the Person to whom any interest on a Security of the series shall be payable, if
other than the Person in whose name that Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such interest;




     (d) the date or dates on which the principal of (and premium, if any, on) any
Securities of the series is payable;




     (e) the rate or rates at which any Securities of the series shall bear interest, if
any, the date or dates from which any such interest shall accrue, the Interest Payment
Dates on which any such interest shall be payable and the Regular Record Date for any such
interest payable on any Interest Payment Date;




     (f) the place or places where the principal of and any premium and interest on any
Securities of the series shall be payable; provided that at least one
such place shall be located in the State of New York;




     (g) the period or periods if any within which, the price or prices at which, the
currency or currency units in which and the terms and conditions upon which any Securities
of the series may be redeemed, in whole or in part, at the option of the Company and, if
other than by a Board Resolution, the manner in which any election by the Company to redeem
the Securities shall be evidenced;



17









 






     (h) the obligation, if any, of the Company to redeem or purchase any Securities of the
series pursuant to any sinking fund or analogous provisions or at the option of the Holder
thereof and the date or dates on which, the period or periods within which, the price or
prices at which and the terms and conditions upon which any Securities of the series shall
be redeemed or purchased, in whole or in part, pursuant to such obligation;




     (i) if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which any Securities of the series shall be issuable;




     (j) if the amount of principal of or any premium or interest on any Securities of the
series may be determined with reference to an index or pursuant to a formula, the manner in
which such amounts shall be determined;




     (k) if other than the currency of the United States of America, the currency,
currencies or currency units in which the principal of or any premium or interest on any
Securities of the series shall be payable and the manner of determining the equivalent
thereof in the currency of the United States of America for any purpose, including for
purposes of the definition of “Outstanding” in Section 1.1;




     (l) if the principal of or any premium or interest on any Securities of the series is
to be payable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such
Securities are stated to be payable, the currency, currencies or currency units in which
the principal of or any premium or interest on such Securities as to which such election is
made shall be payable, the periods within which and the terms and conditions upon which
such election is to be made and the amount so payable (or the manner in which such amount
shall be determined);




     (m) if other than the entire principal amount thereof, the portion of the principal
amount of any Securities of the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 5.2;




     (n) if the principal amount payable at the Stated Maturity of any Securities of the
series will not be determinable as of any one or more dates prior to the Stated Maturity,
the amount which shall be deemed to be the principal amount of such Securities as of any
such date for any purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any
such case, the manner in which such amount deemed to be the principal amount shall be
determined);




     (o) if applicable, that the Securities of the series, in whole or any specified part,
shall be defeasible pursuant to Section 13.2 or Section 13.3 or both



18









 







such
Sections and, if other than by a Board Resolution, the manner in which any election by the
Company to defease such Securities shall be evidenced;




     (p) if applicable, that any Securities of the series shall be issuable in whole or in
part in the form of one or more Global Securities and, in such case, the respective
Depositaries for such Global Securities, the form of any legend or legends which shall be
borne by any such Global Security and any circumstances in addition to or in lieu of those
set forth in Clause (2) of the last paragraph of Section 3.5 in which any such
Global Security may be exchanged in whole or in part for Securities registered, and any
transfer of such Global Security in whole or in part may be registered, in the name or
names of Persons other than the Depositary for such Global Security or a nominee thereof;




     (q) any addition to or change in the Events of Default which applies to any Securities
of the series and any change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable pursuant to Section
5.2;




     (r) any addition to or change in the covenants set forth in Article X which
applies to Securities of the series;




     (s) the extent and manner, if any, to which payment on or in respect of the Securities
of the series will be senior or will be subordinated to the prior payment of other
liabilities and obligations of the Company, and whether the payment of principal, premium, if any, and interest, if any, will be guaranteed by any
other Person and the nature and priority of any security;




     (t) any provisions necessary to permit or facilitate the issuance, payment, exercise
or conversion of any Securities of a series that may be converted into securities or other
property (including, without limitation, the terms and conditions upon which such
conversion or exchange shall be effected), including, without limitation, the Company’s
common shares, preferred shares, debt securities (including Securities) or other
securities, whether in addition to, or in lieu of, any payment of principal or other amount
or otherwise, and whether at the option of the Company or otherwise;




     (u) the obligation, if any, of the Company to pay to Holders of any Securities of the
series amounts as may be necessary so that every net payment on such Security, after
deduction or withholding for or on account of any present or future tax, assessment or
other governmental charge (including penalties, interest and other liabilities related
thereto) imposed by any government or political subdivision or taxing authority thereof or
therein upon or as a result of such payment, will not be less than the amount provided in
such Security, and the terms and conditions, if any, on which the Company has the right to
redeem the Securities rather than pay such additional amounts;



19









 






     (v) the addition of any provisions required to permit the listing of any Securities of
the series on any securities exchange or automated interdealer quotation system; and




     (w) any other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section 9.1(e)).



     All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 3.3) set forth, or determined in the manner provided, in the
Officers’ Certificate referred to above or in any such indenture supplemental hereto.



     If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of
the Officers’ Certificate setting forth the terms of the series.



     Section 3.2 Denominations. The Securities of each series shall be issuable only in registered
form without coupons and only in such denominations as shall be specified as contemplated by
Section 3.1. In the absence of any such specified denomination with respect to the
Securities of any series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.







     Section 3.3
Execution, Authentication, Delivery and Dating. The Securities shall be executed
on behalf of the Company by any two of its officers having the title of Chief Executive
Officer, President, Vice President (including any Executive, Group or other Vice President) or Corporate
Secretary. The signature of any of these officers on the Securities may be manual or facsimile.







     Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver
such Securities. If the form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 2.1 and 3.1, in
authenticating such Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel stating,



20









 










     (a) if the form of such Securities has been established by or pursuant to Board
Resolution as permitted by Section 2.1, that the form has been established in
conformity with the provisions of this Indenture;












     (b)
if the terms of such Securities have been established by or pursuant to Board
Resolution as permitted by Section 3.1, that the terms have been established in
conformity with the provisions of this Indenture; and








     (c) that such Securities, when authenticated and delivered by the Trustee and issued
by the Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the Company enforceable
in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles and to such other
qualifications as such counsel shall conclude do not materially effect the rights of
Holders of such Securities. If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.



     Notwithstanding the provisions of Section 3.1 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Officers’ Certificate otherwise required pursuant to Section 3.1 or the Company
Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to
the authentication of each Security of such series if such documents are delivered at or prior to
the authentication upon original issuance of the first Security of such series to be issued.



     Each Security shall be dated the date of its authentication.



     No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 3.9, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.



     Section 3.4 Temporary Securities. Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed,



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lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as evidenced by their
execution of such Securities.



     If temporary Securities of any series are issued, the Company will cause definitive Securities
of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or
more definitive Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as definitive Securities of
such series and tenor.



     Section 3.5 Registration, Registration of Transfer and Exchange. The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the register maintained in such office and in any other office or agency of the Company in a Place
of Payment being herein sometimes collectively referred to as the “Security Register”) in which,
subject to such reasonable regulations as the Trustee may prescribe, the Company shall provide for
the registration of Securities and of transfers of Securities. The Trustee is hereby appointed
“Security Registrar” for the purpose of registering Securities and transfers of Securities as
herein provided.



     Upon surrender for registration of transfer of any Security of a series at the office or
agency of the Company in a Place of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount.



     At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to receive.



     All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.



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     Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.



     No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any
transfer.



     If the Securities of any series (or of any series and specified tenor) are to be redeemed in
part or surrendered for repayment in part, in each case to the extent, if any, to which redemption
or repayment is permitted with respect to the Securities of such series as contemplated by
Section 3.1, the Company shall not be required (i) to issue, register the transfer of or
exchange any Securities of that series (or of that series and specified tenor, as the case may be)
during a period beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of any such Securities selected for redemption under Section 11.3 and
ending at the close of business on the day of such mailing, (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed
in part or (iii) to issue, register the transfer of or exchange any Securities of that series that
have been surrendered for repayment at the option of the Holder except the portion, if any, thereof
not to be so repaid.



     The provisions of Clauses (1), (2), (3) and (4) below shall apply only to Global Securities:




     (1) Each Global Security authenticated under this Indenture shall be registered in the
name of the Depositary designated for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian therefor, and each such
Global Security shall constitute a single Security for all purposes of this Indenture.




     (2) Notwithstanding any other provision in this Indenture, no Global Security may be
exchanged in whole or in part for Securities registered, and no transfer of a Global
Security in whole or in part may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless (A) such Depositary (i) has
notified the Company that it is unwilling or unable to continue as Depositary for such
Global Security or (ii) has ceased to be a clearing agency registered under the Exchange
Act, (B) there shall have occurred and be continuing an Event of Default with respect to
such Global Security or (C) there shall exist such circumstances, if any, in addition to or
in lieu of the foregoing as have been specified for this purpose as contemplated by
Section 3.1.



23









 






     (3) Subject to Clause (2) above, any exchange of a Global Security for other
Securities may be made in whole or in part, and all Securities issued in exchange for a
Global Security or any portion thereof shall be registered in such names as the Depositary
for such Global Security shall direct.




     (4) Every Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to
this Section, Section 3.4, 3.6, 9.6 or 11.7 or otherwise, shall be authenticated
and delivered in the form of, and shall be, a Global Security, unless such Security is
registered in the name of a Person other than the Depositary for such Global Security or a
nominee thereof.



     Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is
surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.



     If
there shall be delivered to the Company and the Trustee
(i) evidence to the Company’s satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series
and of like tenor and principal amount and bearing a number not contemporaneously outstanding.



     In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.



     Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.



     Every new Security of any series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.



     The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.



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     Section 3.7 Payment of Interest; Interest Rights Preserved.



     Except as otherwise provided as contemplated by Section 3.1 with respect to any series
of Securities, interest on any Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one
or more Predecessor Securities) is registered at the close of business on the Regular Record Date
for such interest.



     Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:




     (1) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest, such money when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in the name and
at the expense of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given to each Holder of Securities of
such series in the manner set forth in Section 1.6, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following Clause (2).




     (2) The Company may make payment of any Defaulted Interest on the Securities of any
series in any other lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice as may be required by
such exchange.


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     Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.



     Section 3.8 Persons Deemed Owners. Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person
in whose name such Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject to Section 3.7) any interest
on such Security and for all other purposes whatsoever, whether or not such Security be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected
by notice to the contrary.



     Section 3.9 Cancellation. All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company has not issued and
sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of as directed by a Company Order.



     Section 3.10 Computation of Interest. Except as otherwise specified as contemplated by
Section 3.1 for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months. Solely for the purposes of the
Interest Act (Canada), the yearly rate of interest to which interest calculated under a Security
for a period of less than one year on the basis of a year of 360 days consisting of twelve 30 day
periods (the “calculation period”) is equivalent is such rate of interest multiplied by a fraction
of which (i) the numerator is the product of (A) the actual number of days in the year commencing
on the first day of such period, multiplied by (B) the sum of (y) the product of 30 multiplied by
the number of complete months elapsed in such period and (z) the actual number of days elapsed in
any incomplete month in such period; and (ii) the denominator is the product of (A) 360 multiplied
by (B) the actual number of days in such period.



     Section 3.11 CUSIP Numbers. The Company in issuing Securities of any series may use “CUSIP”
or similar identifying numbers (if then generally in use) and, if so, the Trustee shall use “CUSIP”
and/or such other similar identifying numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice of a redemption and
that reliance may be



26









 







placed only on the other identification numbers printed on the Securities, and
any such redemption shall not be affected by any defect in or omission of such numbers. The
Company shall promptly notify the Trustee of any change in the CUSIP numbers.



ARTICLE IV.

SATISFACTION AND DISCHARGE




     Section 4.1 Satisfaction and Discharge of Indenture. Unless otherwise provided as
contemplated by Section 3.1 with respect to any series of Securities, this Indenture shall
upon Company Request cease to be of further effect with respect to any series of Securities
specified in such Company Request (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when




     (1) either




     (A) all Securities of such series theretofore authenticated and delivered
(other than (i) Securities of such series which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.6 and (ii)
Securities of such series for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 10.3) have
been delivered to the Trustee for cancellation; or




     (B) all such Securities not theretofore delivered to the Trustee for
cancellation




     (i) have become due and payable, or




     (ii) will become due and payable at their Stated Maturity within one
year, or




     (iii) if redeemable at the option of the Company, are to be called
for redemption within one year under arrangements specified by the Company for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company, and the Company, in the case of (i),
(ii) or (iii) above, has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose money in an
amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;



27









 






     (2) the Company has paid or caused to be paid all other sums payable hereunder by the
Company; and



     (3) the Company has delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.



Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 6.7, the obligations of the Trustee to any Authenticating Agent
under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 10.3 shall survive.




     Section 4.2 Application of Trust Money. Subject to the provisions of the last paragraph of
Section 10.3, all money deposited with the Trustee pursuant to Section 4.1 shall be
held in trust and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal and any premium and interest for whose payment such money has been deposited with the
Trustee.



ARTICLE V.

REMEDIES




     Section 5.1 Events of Default.



     “Event of Default”, wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
occasioned by provisions with respect to the subordination of the Securities of such series in the
event that such Securities are subordinated as contemplated by Section 3.1(s) or be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body),
unless such event is specifically deleted or modified in or pursuant to a supplemental indenture,
Board Resolution or Officers’ Certificate establishing the terms of such series pursuant to
Section 3.1 of this Indenture:




     (a) default in the payment of any interest upon any Security of that series when it
becomes due and payable, and continuance of such default for a period of 30 days; or




     (b) default in the payment of the principal of or any premium on any Security of that
series at its Maturity or, if such Securities are convertible into



28









 







other securities or
property as contemplated by Section 3.1(t), any amounts due upon conversion of the
Securities; or




     (c) default in the performance, or breach, of any covenant or agreement of the Company
in this Indenture which affects or is applicable to the Securities of that series (other
than a covenant or agreement, a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with), and continuance of such default or breach for a
period of 90 days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of all Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied and stating that such notice is a “Notice of
Default” hereunder; or




     (d) the entry of a decree or order by a court having jurisdiction in the premises
adjudging the Company or a significant subsidiary a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company or a significant subsidiary under or subject to the Bankruptcy
and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the U.S.
Federal Bankruptcy Code or any other federal, provincial, state or foreign bankruptcy,
insolvency or analogous laws, or the issuance of a sequestration order or the appointment
of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of
the Company or a significant subsidiary or in receipt of any substantial part of the
property of the Company or a significant subsidiary, and any such decree, order or
appointment continues unstayed and in effect for a period of 90 consecutive days; or




     (e) the institution by the Company or a significant subsidiary of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by the Company or a significant
subsidiary to the institution of bankruptcy or insolvency proceedings against the Company
or a significant subsidiary, or the filing by the Company or a significant subsidiary of a
petition or answer or consent seeking reorganization or relief under or subject to the
Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada),
the U.S. Federal Bankruptcy Code or any other federal, provincial, state or foreign
bankruptcy, insolvency or analogous laws or the consent by the Company or a significant
subsidiary to the filing of any such petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or a
significant subsidiary or of any substantial part of the property of the Company or a
significant subsidiary, or the making by the Company or a significant subsidiary of a
general assignment for the benefit of creditors, or the admission by the Company or a
significant subsidiary in writing of its inability to pay its debts generally as they
become due or the taking by the Company or a significant subsidiary of corporate action in
furtherance of any of the aforesaid purposes; or



29









 






     (f) any other Event of Default provided with respect to Securities of that series.



     Section 5.2 Acceleration of Maturity; Rescission and Annulment. If an Event of Default
described in clauses (a), (b), (c) or (f) of Section 5.1 with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of that
series may subject to any subordination provisions thereof, declare the principal amount of all the
Securities of that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee if given by
Holders), and upon any such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified in clauses (d) or (e) of Section
5.1 occurs and is continuing, then the principal amount of all of the Securities shall
automatically be immediately due and payable without any declaration or other act on the part of
the Trustees or any Holder.



     At any time after such a declaration of acceleration with respect to Securities of any series
(or of all series, as the case may be) has been made and before a judgment or decree for payment of
the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders
of a majority in principal amount of the Outstanding Securities of that series (or of all series,
as the case may be), by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if




     (a) the Company has paid or deposited with the Trustee a sum sufficient to pay




     (i) all overdue interest on all Securities of that series,




     (ii) the principal of (and premium, if any, on) any Securities of that series
(or of all series, as the case may be) which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,




     (iii) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such Securities, and




     (iv) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel; and




     (b) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series (or of all series, as the case
may be) which have become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 5.13.



30









 





     No such rescission shall affect any subsequent default or impair any right consequent thereon.



     Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee. The Company
covenants that if




     (a) default is made in the payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period of 30 days, or




     (b) default is made in the payment of the principal of (or premium, if any, on) any
Security at the Maturity thereof.


the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for principal and any premium
and interest and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.




     If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.



     Section 5.4 Trustee May File Proofs of Claim. In case of any judicial proceeding relative to
the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and
all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the
Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 6.7.



     No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the



31









 







rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors’ or other similar
committee.



     Section 5.5 Trustee May Enforce Claims Without Possession of Securities. All rights of action
and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.



     Section 5.6 Application of Money Collected. Any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or any premium or interest,
upon presentation of the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:




     FIRST: To the payment of all amounts due to the Trustee under Section 6.7; and




     SECOND: Subject to provisions with respect to the subordination of such Securities in
the event that such Securities are subordinated to other obligations of the Company as
contemplated by Section 3.1(s), to the payment of the amounts then due and unpaid
for principal of and any premium and interest on the Securities in respect of which or for
the benefit of which such money has been collected, ratably, without preference or priority
of any kind, according to the amounts due and payable on such Securities for principal and
any premium and interest, respectively.



     Section 5.7 Limitation on Suits. No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless




     (a) such Holder has previously given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of that series;








     (b)
the Holders of not less than 25% in principal amount of the Outstanding Securities
of that series in the case of an Event of Default under Sections 5.1(a), (b), (c), or
(f) or, in the case of Section 5.1(d) or (e), the Holders of not less than 25%
in principal amount of all Outstanding Securities, shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;







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     (c) such Holder or Holders have offered to the Trustee reasonable indemnity against
the costs, expenses and liabilities to be incurred in compliance with such request;




     (d) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and




     (e) no direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of the
Outstanding Securities of that series in the case of an Event of Default described in
clauses (a), (b), (c) or (f) of Section 5.1, or in the case of an Event of Default
described in clauses (d) or (e) of Section 5.1, by the Holders of a majority or
more in principal amount of all Outstanding Securities;


it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing themselves of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holders of Securities of the same series, in
the case of any Event of Default described in clauses (a), (b), (c) or (f) of Section 5.1
or of Holders of all Securities in the case of an Event of Default described in clauses (d) or (e)
of Section 5.1, or to obtain or to seek to obtain priority or preference over any other of
such Holders or to enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all of such Holders.




     Section 5.8 Unconditional Right of Holders to Receive Principal, Premium and Interest and to
Convert Certain Securities. Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to receive payment of the
principal of and any premium and (subject to Section 3.7) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and, if the terms of such Security so provide as contemplated by Section
3.1(t), to convert such Security in accordance with its terms and to institute suit for the
enforcement of any such payment and, if applicable, any such right to convert, and such rights
shall not be impaired without the consent of Holders of Securities of the same series, in the case
of any Event of Default described in clauses (a), (b), (c) or (f) of Section 5.1 or of
Holders of all Securities in the case of an Event of Default described in clauses (d) or (e) of
Section 5.1.



     Section 5.9 Restoration of Rights and Remedies. If the Trustee or any Holder has instituted
any proceeding to enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.



     Section 5.10 Rights and Remedies Cumulative. Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen



33









 







Securities in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.



     Section 5.11 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any
Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.



     Section 5.12 Control by Holders. Subject to Article VI, with respect to the
Securities of any series, such Holders of not less than a majority in principal amount of the
Outstanding Securities of such series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee relating to or arising under clauses (a), (b), (c) or (f) of Section
5.1 and, with respect to all Securities, the Holders of not less than a majority in principal
amount of all Outstanding Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustees, or exercising any trust or
power conferred on the Trustees, relating to or arising under clauses (d) or (e) of Section
5.1, provided that in each case




     (a) such direction shall not be in conflict with any rule of law or with this
Indenture, and




     (b) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.



     Section 5.13 Waiver of Past Defaults. The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default described in clause (a), (b), (c), or (f) of
Section 5.1 (or, in the case of a default described in clause (d) or (e) of Section
5.1, the Holders of not less than a majority in principal amount of all Outstanding Securities
may waive any such past default), and its consequences, except a default




     (a) in the payment of the principal of or any premium or interest on any Security, or




     (b) in respect of a covenant or provision hereof which under Article IX cannot
be modified or amended without the consent of the Holder of each Outstanding Security of
such series affected.



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     Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or Event of Default or impair any right
consequent thereon.



     Section 5.14 Undertaking for Costs. In any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted
by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay
the costs of such suit, and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; provided that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such
an assessment in any suit instituted by the Trustee.



     Section 5.15 Waiver of Usury, Stay or Extension Laws. The Company covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.



ARTICLE VI.

THE TRUSTEE




     Section 6.1 Certain Duties and Responsibilities. The duties and responsibilities of the
Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers. Whether or not therein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.



     Section 6.2
Defaults; Liabilities. (a) If a default occurs hereunder with respect to Securities of
any series and either (i) a Responsible Officer of the Trustee shall have actual knowledge of such
default or (ii) the Trustee shall have received written notice thereof, the Trustee shall give the
Holders of Securities of such series notice of such default within 90 days after it has such knowledge or has received such notice unless such default shall have been cured or waived prior to the giving of such notice, as and to the extent provided by the
Trust Indenture Act. For the purpose of this
Section, the term “default” means




35












 




any event which is, or after notice or lapse of time or both would become, an Event of Default
with respect to Securities of such series.




     (b) If an Event of Default has occurred and is continuing, the Trustee
will exercise such rights and powers vested in it by this Indenture and use
the same degree of care and skill in its exercise thereof as a prudent Person would
exercise or use under the circumstances in the conduct of his or her own affairs. Except
during the continuance of an Event of Default,



     (i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trust Indenture Act, and the
Trustee need perform only those duties as are specifically set forth in
this Indenture and no covenants or obligations shall be implied or read
into this Indenture against the Trustee, and




     (ii) in the absence of bad faith on its party, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; provided that the Trustee shall examine the certificates and
opinions furnished to it to determine whether or not they conform to the
requirements of this Indenture.




     (c) Notwithstanding anything to the contrary herein contained, the
Trustee may not be relieved from liability for its own negligent action,
its own negligent failure to act or its own willful misconduct, except that:



     (i) this subsection does not limit the effect of Section 6.2(b);




     (ii) the Trustee shall not be liable for any error in judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts; and




     (iii) the Trustee shall not be liable with respect to any action
taken by it in good faith in accordance with a direction received by it
pursuant to Section 5.12.




     (d) Anything in this Indenture to the contrary notwithstanding, in no
event shall the Trustee be liable under or in connection with this Indenture for special,
incidental, punitive or consequential losses or damages of any kind whatsoever, including
but not limited to lost profits, whether or not foreseeable, even if the Trustee has been
advised of the possibility thereof and regardless of the form of action in which such damages are sought.



     (e) The Trustee shall not be liable for the failure to perform its duties
and obligation hereunder to the extent that such failure is directly caused by the failure of
the Company to perform its obligations hereunder.





     Section 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1 and 6.2:



     (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper party or parties;



     (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order, and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;



     (c) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers’ Certificate;



     (d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;



     (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the
costs, expenses and liabilities which might be incurred by it in compliance with such request or
direction;



     (f) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;



     (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder;



     (h) the Trustee shall not be required to give any bond or surety in respect of the
performance of its powers and duties hereunder;



     (i) the Trustee shall not be liable for any action taken, suffered or omitted to be taken
by it in good faith and reasonably believed by it to be authorized or within the discretion, rights
or powers conferred upon it by this Indenture;



     (j) the Trustee may request that the Company deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers Certificate may be signed by any Persons
authorized to sign an Officers’ Certificate, including any Person specified as so authorized in any
such certificate previously delivered and not superseded;



     (k) the permissive right of the Trustee to take any action under this Indenture shall not
be construed as creating a duty so to act; and



     (l) the Trustee shall not be liable for any money received by it except as the Trustee may
agree in writing with the Company.





     Section 6.4 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of



36









 







authentication, shall be taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.



     Section 6.5 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 6.8 and 6.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.



     Section 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.



     Section 6.7 Compensation and Reimbursement.
The Company agrees



     (a) to pay to the Trustee from time to time reasonable compensation for all services rendered
by it hereunder (which compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);



     (b) except as otherwise expressly provided herein, to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its gross negligence or willful misconduct; and



     (c) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without gross negligence or willful misconduct on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including the costs and expenses
of defending itself against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder.



The obligations of the Company under this Section 6.7 shall survive the satisfaction and discharge of this Indenture or the
resignation or removal of the Trustee and shall continue to inure to the benefit of any retiring or resigning Trustee.



     Section 6.8 Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and
this Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with respect to Securities
of more than one series.



     Section 6.9 Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one or more other
series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act
as such and has



37









 







a combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee with respect to the Securities of any series shall cease
to be eligible in accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.



     Section 6.10 Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.



     The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities
of such series.



     The Trustee may be removed at any time with respect to the Securities of any series by Act of
the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.



     If at any time:




     (1) the Trustee shall fail to comply with Section 6.8 after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a Security for
at least six months, or




     (2) the Trustee shall cease to be eligible under Section 6.9 and shall fail to
resign after written request therefor by the Company or by any such Holder, or




     (3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,


then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect
to all Securities, or (ii) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or Trustees.





38









 








     If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Securities of one or more series,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11. If, within one
year after such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such series delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the Company or the Holders
and accepted appointment in the manner required by Section 6.11, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.



     The Company shall give notice of each resignation and each removal of the Trustee with respect
to the Securities of any series and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series in the manner provided in
Section 1.6. Each notice shall include the name of the successor Trustee with respect to
the Securities of such series and the address of its Corporate Trust Office.



     Section 6.11 Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on
the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee hereunder.



     In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which (i) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights,



39









 







powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such successor Trustee relates,
(ii) if the retiring Trustee is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(iii) shall add to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it
being understood that nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such successor Trustee
relates.



     Upon request of any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph, as the case may be.



     No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.



     Section 6.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities.



     Section 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor
upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any such other obligor).



40









 





     Section 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 3.6, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, authorized under such laws
to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the effect specified in
this Section.



     Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.



     An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in Section 1.6 to all Holders of
Securities of the series with respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.



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     The Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section, and the Trustee shall be entitled to be
reimbursed for such payments, subject to the provisions of Section 6.7.



     If an appointment with respect to one or more series is made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of
authentication, an alternative certificate of authentication in the following form:



     This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.



Dated:                                         




	 	 	 	 	 
	 	Bank of New York Mellon Trust Company, N. A., as Trustee

 	 
	 
	 	By:  	 	 
	 	 	as Authenticating Agent 	 
	 	 	 	 



	 	 	 	 	 
	 	By:  	
 	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 



     Section 6.15 Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God,
and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent
with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.



     Section 6.16 Other Capacities.
The immunities, protections, indemnities and exculpations available
to the Trustee under this Indenture shall also be available to the Securities Registrar, Authorization Agent, any paying agent and any other
Person acting as an agent hereunder, whether such Person shall be The Bank of New York Mellon, N.A. or any other Person.



ARTICLE VII.

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY





     Section 7.1 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee




     (1) semi-annually, not later than 15 days after each Regular Record Date, a list, in
such form as the Trustee may reasonably require, of the names and addresses of the Holders
of Securities of each series as of such Regular Record Date, and




     (2) at such other times as the Trustee may request in writing, within 30 days after
the receipt by the Company of any such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is furnished; excluding from any
such list names and addresses received by the Trustee in its capacity as Security
Registrar.



     Section 7.2 Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee as provided



42









 







in
Section 7.1 and the names and addresses of Holders received by the Trustee in its capacity
as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section
7.1 upon receipt of a new list so furnished.



     The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided by the Trust Indenture Act.



     Every Holder of Securities, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.



     Section 7.3 Reports by Trustee.
Within 30 days after each March 15, beginning with
March 15, 2009, and for so long as any
Securities remain Outstanding, the Trustee shall mail to the Holders of the Securities a report
complying with Section 313(a) of the Trust Indenture Act, dated as of such reporting date;
provided, however, that no such report need be transmitted if no event described in Section 313(a)
of the Trust Indenture Act has occurred during the twelve months preceding the reporting date. The
Trustee shall comply with Section 313(b) of the Trust Indenture Act, and shall transmit by mail all
reports as required by Section 313(c) of the Trust Indenture Act.



     A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with
the Commission and with the Company. The Company will notify the Trustee when any Securities
are listed on any stock exchange.



     Section 7.4 Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to Holders, such
information, documents and other reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided
that any such information, documents or reports required to be filed with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the
same is so required to be filed with the Commission. If the Company is not required to file such
information, documents or reports with the SEC, then the Company shall file with the Trustee such
periodic reports as the Company files with the securities commission or corresponding securities
regulatory authority in each of the Provinces of Canada within 15 days after the same are so
required to be filed with such securities commissions or securities regulatory authorities.



ARTICLE VIII.

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE




     Section 8.1 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate or amalgamate with or merge into, or enter into any
statutory arrangement for such purpose with, any other Person or convey, transfer or



43









 







lease its
properties and assets substantially as an entirety to any Person, whether in a single transaction
or a series of related transactions, unless:




     (a) in case the Company shall consolidate, amalgamate or enter into a statutory
arrangement with or merge into another Person or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, the Person formed by such
consolidation, amalgamation or statutory arrangement or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation, partnership or
trust, shall be organized and validly existing under the laws of Canada or any Province or
Territory thereof, the United States of America or any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of and any premium and interest on all the Securities and the performance
or observance of every covenant and obligation of this Indenture on the part of the Company
to be performed or observed;




     (b) immediately after giving effect to such transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event of Default, shall
have happened and be continuing;




     (c) the Company or such Person has delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel, each stating that such consolidation, amalgamation, statutory
arrangement, merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to such transaction
have been complied with.



     This Section 8.1 shall only apply to a merger, amalgamation, statutory arrangement or
consolidation in which the Company is not the surviving entity and to conveyances, leases and
transfers by the Company as transferor or lessor. For greater certainty, the Company shall be
considered to be the surviving entity in the event of a statutory amalgamation by the Company with
any Subsidiaries wholly-owned by it.



     Section 8.2 Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into, any other Person or
any conveyance, transfer or lease of the properties and assets of the Company substantially as an
entirety in accordance with Section 8.1, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture and the Securities and may be dissolved and
liquidated.



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ARTICLE IX.

SUPPLEMENTAL INDENTURES




     Section 9.1 Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:




     (a) to evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants of the Company herein and in the Securities; or




     (b) to add to the covenants of the Company for the benefit of the Holders of all or
any series of Securities (and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred upon the
Company; or




     (c) to add any additional Events of Default for the benefit of the Holders of all or
any series of Securities (and if such additional Events of Default are to be for the
benefit of less than all series of Securities, stating that such additional Events of
Default are expressly being included solely for the benefit of such series); or




     (d) to add to or change any of the provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the issuance of Securities in bearer form,
registrable or not registrable as to principal, and with or without interest coupons, or to
permit or facilitate the issuance of Securities in uncertificated form; or




     (e) to add to, change or eliminate any of the provisions of this Indenture in respect
of one or more series of Securities, provided that any such addition, change or elimination
(A) shall neither (i) apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such provision nor (ii) modify
the rights of the Holder of any such Security with respect to such provision or (B) shall
become effective only when there is no such Security Outstanding; or




     (f) to secure the Securities; or




     (g) to establish the form or terms of Securities of any series as permitted by
Sections 2.1 and 3.1; or




     (h) to add or amend provisions for purposes of effecting the subordination of
Securities of any series subordinated to other obligations of the Company as contemplated
by Section 3.1(s); or



45









 






     (i) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 6.11; or




     (j) to close this Indenture with respect to the authentication and delivery of
additional series of Securities; or




     (k) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of Securities
pursuant to Sections 4.1, 13.2, and 13.3; provided that any such action shall not
adversely affect the interest of the Holders of Securities of such series or any other
series of Securities in any material respect; or




     (l) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, provided that such
action pursuant to this Clause (l) shall not
adversely affect the interests of the Holders of Securities of any series in any
material respect.



     Section 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby,




     (a) change the Stated Maturity of the principal of, or any installment of principal of
or interest on, any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security or any other Security which would
be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.2, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date), or, in the event
that such Securities are subordinated to other obligations of the Company as contemplated
by Section 3.1(s), modify provisions with respect to the subordination of such
Securities in a manner adverse to the Holders, or in the event that such Securities are
convertible into any other property or into other



46









 







securities of the Company as contemplated
by Section 3.1(t), modify the provisions with respect to the conversion of such
Securities in a manner adverse to the Holders, or




     (b) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or




     (c) modify any of the provisions of this Section, Section 5.13 or Section
10.8, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of the Holder
of each Outstanding Security affected thereby; provided, however, that this clause shall
not be deemed to require the consent of any Holder with respect to changes in the
references to “the Trustee” and concomitant changes in this Section and Section
10.8, or the deletion of this proviso, in accordance with the requirements of
Sections 6.11 and 9.1(i).



     A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.



     It shall not be necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.



     Section 9.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 6.1) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise.



     Section 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.



47









 





     Section 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.



     Section 9.6 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities
of such series.



     Section 9.7 Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 9.2, the Company shall give notice thereof to the
Holders of each Outstanding Security affected, in the manner
provided for in Section 1.6, setting forth in general terms the substance of such
supplemental indenture.



ARTICLE X.

COVENANTS




     Section 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of and any premium and interest on the Securities of that
series in accordance with the terms of the Securities and this Indenture.



     Section 10.2 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.



     The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes. The Company will
give prompt written notice to the



48









 







Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.



     Section 10.3 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of
Securities, it will, on or before each due date of the principal of or any premium or interest on
any of the Securities of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act. Whenever the Company shall have
one or more Paying Agents for any series of Securities, it will, prior to each due date of the
principal of or any premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture
Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act. The Company will cause each Paying Agent for any
series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will (i) comply with the provisions of the Trust Indenture Act applicable to
it as a Paying Agent and (ii) during the continuance of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee
all sums held in trust by such Paying Agent for payment in respect of the Securities of that
series. The Company may at any time, for the purpose of obtaining the satisfaction and discharge
of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be
held by the Trustee upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such money.



     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or any premium or interest on any Security of any series
and remaining unclaimed for two years after such principal, premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published on each Business Day
and of general circulation in New York, New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid to the Company.



49









 





     Section 10.4 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, an Officers’ Certificate, stating whether or not to the
best knowledge of the signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they may have knowledge.



     Section 10.5 Existence.
Subject to Article VIII, the Company will do or cause to be done all things necessary
to preserve and keep in full force and effect its existence, rights (charter and
statutory) and franchises; provided, however, that the Company shall not be required to
preserve any such right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to the Holders.



     Section 10.6 Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company
may be necessary so that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the operation or maintenance of or selling or otherwise
disposing of any of such properties if such discontinuance, sale or disposition is, in the judgment
of the Company, desirable in the conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.



     Section 10.7 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (i) all taxes, assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary,
and (ii) all lawful claims for labor, materials and supplies which, if unpaid, might by law become
a lien upon the property of the Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being contested in good
faith by appropriate proceedings.



     Section 10.8 Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 3.1 for Securities of such
series, the Company may, with respect to the Securities of any series, omit in any particular
instance to comply with any term, provision or condition set forth in any covenant provided
pursuant to Section 3.1(r), 9.1(b) or 9.1(e) for the benefit of the Holders of such series,
if before the time for such compliance the Holders of a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance
in such instance



50









 







or generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such term, provision or condition shall remain in full
force and effect.



ARTICLE XI.

REDEMPTION OF SECURITIES




     Section 11.1 Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section
3.1 for such Securities) in accordance with this Article.



     Section 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution
or in another manner specified as contemplated by Section 3.1 for such Securities. In case
of any redemption at the election of the Company of less than all the Securities of any series
(including any such redemption affecting only a single Security), the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount
of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to
be redeemed. In the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing
compliance with such restriction.



     Section 11.3 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all the Securities of
such series and of a specified tenor are to be redeemed or unless such redemption affects only a
single Security), the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not
previously called for redemption, by lot or by such other method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of a portion of the principal amount of any
Security of such series, provided that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities of such series and of
a specified tenor are to be redeemed (unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected by lot or by such
other method as the Trustee shall deem fair and appropriate not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding sentence.



     The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption as aforesaid and, in case of any Securities selected for partial redemption as
aforesaid, the principal amount thereof to be redeemed.



51









 





     The provisions of the two preceding paragraphs shall not apply with respect to any redemption
affecting only a single Security, whether such Security is to be redeemed
in whole or in part. In the case of any such redemption in part, the unredeemed portion of
the principal amount of the Security shall be in an authorized denomination (which shall not be
less than the minimum authorized denomination) for such Security.



     For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or
to be redeemed only in part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.



     Section 11.4 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Security Register. All notices of redemption shall state:




     (a) the Redemption Date,




     (b) the Redemption Price,




     (c) if less than all the Outstanding Securities of any series consisting of more than
a single Security are to be redeemed, the identification (and, in the case of partial
redemption of any such Securities, the principal amounts) of the particular Securities to
be redeemed and, if less than all the Outstanding Securities of any series consisting of a
single Security are to be redeemed, the principal amount of the particular Security to be
redeemed,




     (d) that on the Redemption Date the Redemption Price will become due and payable upon
each such Security to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date,




     (e) the place or places where each such Security is to be surrendered for payment of
the Redemption Price, and




     (f) that the redemption is for a sinking fund, if such is the case.



     Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of
the Company and shall be irrevocable.



     Section 11.5 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.



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     Section 11.6 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be paid by the Company
at the Redemption Price, together with accrued interest to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 3.1, installments of interest
whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of Section 3.7. If
any Security called for redemption shall not be so paid upon surrender thereof for redemption, the
principal and any premium shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.



     Section 11.7 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.



ARTICLE XII.

SINKING FUNDS




     Section 12.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of any series except as otherwise specified as contemplated by Section 3.1 for
such Securities.



     The minimum amount of any sinking fund payment provided for by the terms of any Securities is
herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum
amount provided for by the terms of such Securities is herein referred to as an “optional sinking
fund payment”. If provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.2. Each sinking fund payment
shall be applied to the redemption of Securities as provided for by the terms of such Securities.



     Section 12.2 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments



53









 







pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to any Securities of such series required to be made pursuant to the terms of such
Securities as and to the extent provided for by the terms of such Securities; provided that the
Securities to be so credited have not been previously so credited. The Securities to be so
credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as
specified in the Securities so to be redeemed, for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be reduced accordingly.



     Section 12.3 Redemption of Securities for Sinking Fund.
Not less than 20 days prior to each sinking fund payment date for any Securities, the Company
will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing
sinking fund payment for such Securities pursuant to the terms of such Securities, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities pursuant to Section 12.2 and will
also deliver to the Trustee any Securities to be so delivered. Not less than 10 days prior to each
such sinking fund payment date, the Trustee shall select, by lot or
by such other method as the Trustee shall deem fair and reasonable, the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 11.3 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company in the manner
provided in Section 11.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections 11.6 and 11.7.



ARTICLE XIII.

DEFEASANCE AND COVENANT DEFEASANCE




     Section 13.1 Company’s Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 13.2 or Section
13.3 applied to any Securities or any series of Securities, as the case may be, designated
pursuant to Section 3.1 as being defeasible pursuant to such Section 13.2 or 13.3,
in accordance with any applicable requirements provided pursuant to Section 3.1 and upon compliance
with the conditions set forth below in this Article. Any such election shall be evidenced by a
Board Resolution or in another manner specified as contemplated by Section 3.1 for such
Securities.



     Section 13.2 Defeasance and Discharge.
Upon the Company’s exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, the Company shall be deemed to have
been discharged from its obligations, and, if the Securities of such series
are subordinated to any other obligations of the Company as contemplated by
Section 3.1(s), provisions with respect to the subordination of such Securities shall cease
to be effective, with respect to such Securities as provided in this Section on and after the date
the conditions set forth in Section 13.4 are satisfied (hereinafter called “Defeasance”).
For this purpose, such Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities and to have satisfied all its
other obligations under such Securities and this Indenture insofar as such Securities are concerned
(and the Trustee, at the expense of the Company, shall execute proper



54









 







instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of such Securities to receive, solely from the trust fund
described in Section 13.4 and as more fully set forth in such Section, payments in respect
of the principal of and any premium and interest on such Securities when payments are due, (ii) the
Company’s obligations with respect to such Securities under Sections 3.4, 3.5, 3.6, 10.2 and
10.3, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv)
this Article. Subject to compliance with this Article, the Company may exercise its option (if
any) to have this Section applied to any Securities or any series of Securities notwithstanding the
prior exercise of its option (if any) to have Section 13.3 applied to such Securities.



     Section 13.3 Covenant Defeasance.
Upon the Company’s exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, (i) the Company shall be released from
its obligations under Sections 10.5 through 10.7, inclusive, and any covenants provided
pursuant to Section 3.1(r), 9.1(b) or 9.1(e) for the benefit of the Holders of such
Securities, (ii) the occurrence of any event specified in Section 5.1(c) (with respect to
any of Sections 10.5 through 10.7, inclusive, and any such covenants provided pursuant to
Section 3.1(r), 9.1(b) or 9.1(e)), 5.1(c) and 5.1(f) shall be deemed not to be or result in
an Event of Default and (iii), if such Securities or series of Securities are subordinated to other
obligations of the Company pursuant to Section 3.1(s), the provisions with respect to the
subordination shall cease to be effective, in each case with respect to such Securities as provided
in this Section on and after the date the conditions set forth in Section 13.4 are
satisfied (hereinafter called “Covenant Defeasance”) , and such Securities shall thereafter been
deemed not to be “Outstanding” for the purposes of any direction, waiver, consent or declaration or
Act of Holders (and the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such
Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation set forth in any
such specified Section (to the extent so specified in the case of Section 5.1(c)) or
applicable provisions with respect to the subordination of such Securities or series of Securities,
whether directly or indirectly by reason of any reference elsewhere herein to any such Section or
applicable subordination provisions or by reason of any reference in any such Section or applicable
subordination provisions to any other provision herein or in any other document, but the remainder
of this Indenture and such Securities shall be unaffected thereby.



     Section 13.4 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 13.2 or
Section 13.3 to any Securities or any series of Securities, as the case may be:




     (a) The Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee which satisfies the requirements contemplated by Section
6.9 and agrees to comply with the provisions of this Article applicable to it) as trust
funds in trust for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of such Securities, (A)
money in an amount, or (B)



55









 







U.S. Government Obligations which through the scheduled payment
of principal and interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee
(or any such other qualifying trustee) to pay and discharge, the principal of and any
premium and interest on such Securities on the respective Stated Maturities, in accordance
with the terms of this Indenture and such Securities. As used herein, “U.S. Government
Obligation” means (x) any security which is (i) a direct obligation of the United States of
America for the payment of which the full faith and credit of the United States of America
is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States of
America, which, in either case (i) or (ii), is not callable or redeemable at the option of
the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation
which is specified in Clause (x) above and held by such bank for the account of the holder
of such depositary receipt, or with respect to any specific payment of principal of or
interest on any U.S. Government Obligation which is so specified and held, provided that
(except as required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment of principal
or interest evidenced by such depositary receipt.




     (b) In the event of an election to have Section 13.2 apply to any Securities
or any series of Securities, as the case may be, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (ii) since the date of this
instrument, there has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm that, the Holders of
such Securities will not recognize gain or loss for Federal income tax purposes as a result
of the deposit, Defeasance and discharge to be effected with respect to such Securities and
will
be subject to Federal income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit, Defeasance and discharge were not to
occur.




     (c) In the event of an election to have Section 13.3 apply to any Securities
or any series of Securities, as the case may be, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and will be subject to
Federal income tax on the same amount, in




56












 




the same manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.




     (d) The Company shall have delivered to the Trustee an Officers’ Certificate to the
effect that neither such Securities nor any other Securities of the same series, if then
listed on any securities exchange, will be delisted as a result of such deposit.



     (e) No event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to such Securities or any other Securities shall have occurred and
be continuing at the time of such deposit or, with regard to any such
event specified in
Sections 5.1(e) and (f), at any time on or prior to the 91st day after the date of
such deposit (it being understood that this condition shall not be deemed satisfied until
after such 91st day).



     (f) The Company shall have delivered to the Trustee either an Opinion of Counsel of
Canadian counsel or a ruling from Canada Revenue Agency to the effect that the Holders of
such Securities will not recognize income, gain or loss for Canadian federal or provincial
income tax or other tax purpose as a result of such Defeasance or Covenant Defeasance, as
the case may be, and will be subject to Canadian federal or provincial income tax and other
tax on the same amounts, in the same manner and at the same times as would have been the
case had such Defeasance or Covenant Defeasance, as the case may be, not occurred (and for
the purposes of such opinion, such Canadian counsel shall assume that Holders of such
Securities include Holders who are not resident in Canada).



     (g) The Company is not an “insolvent person” within the meaning of the Bankruptcy and
Insolvency Act (Canada) on the date of such deposit or at any time during the period ending
on the 90th day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).



     (h) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities
are in default within the meaning of such Act).



     (i) Such Defeasance or Covenant Defeasance shall not result in a breach or violation
of, or constitute a default under, any other agreement or instrument to which the Company
is a party or by which it is bound.



     (j) Such Defeasance or Covenant Defeasance shall not result in the trust arising from
such deposit constituting an investment company within the meaning of the Investment
Company Act unless such trust shall be registered under such Act or exempt from
registration thereunder.



     (k) The Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent



57









 






     with respect to such Defeasance or Covenant Defeasance have been complied with.



     Section 13.5 Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions.



     Subject to the provisions of the last paragraph of Section 10.3, all money and U.S.
Government Obligations (including the proceeds thereof) deposited with the Trustee or other
qualifying trustee (solely for purposes of this Section and Section 13.6, the Trustee and
any such other trustee are referred to collectively as the “Trustee”) pursuant to Section
13.4 in respect of any Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and any premium and interest, but money so held in trust need not
be segregated from other funds except to the extent required by law. Money and U.S. Government
Obligations so held in trust for the benefit of Securities subordinated to other obligations of the
Company pursuant to Section 3.1(s) shall not be subject to the provisions of this Indenture
with respect to the subordination of such Securities.



     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 13.4
or the principal and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of Outstanding Securities.



     Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon Company Request any money or U.S. Government Obligations held by
it as provided in Section 13.4 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect
to such Securities.



     Section 13.6 Reinstatement. If the Trustee or the Paying Agent is unable to apply any money
in accordance with this Article with respect to any Securities by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations under this Indenture and such Securities from which the Company
has been discharged or released pursuant to Section 13.2 or 13.3 shall be revived and
reinstated as though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in
trust pursuant to Section 13.5 with respect to such Securities in accordance with this
Article; provided, however, that if the Company makes any payment of principal of or any premium or
interest on any such Security following such reinstatement of its obligations, the Company shall be
subrogated



58









 





to the rights (if any) of the Holders of such Securities to receive such payment from the
money so held in trust.




     This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument. Delivery of an executed counterpart of the signature
page of this Indenture shall be effective as delivery of an original
executed counterpart hereof.



ARTICLE
XIV
WAIVER OF JURY TRIAL



     EACH
OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLE WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED
HEREBY.


59









 





     IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as
of the day and year first above written.



	 	 	 	 	 
	 	INTEROIL CORPORATION

 	 
	 	By:  	/s/
PHIL E. MULACEK	 
	 	 	Name:  	Phil E. Mulacek 	 
	 	 	Title:  	Chairman of the Board and Chief Executive Officer 	 
	 
	 	THE BANK OF NEW YORK MELLON TRUST

COMPANY, N.A.

 	 
	 	By:  	/s/
MAURI J. COWEN	 
	 	 	Name:  	Mauri J. Cowen 	 
	 	 	Title:  	Vice President